Ten To Toss
The top Bush executive orders that Obama should scrap immediately.
Posted Tuesday, Jan. 20, 2009, at 1:03 PM
Why it should go: EO 13440 looks like an improvement on previous directives to the CIA, like the memos from the Justice Department written by John Yoo, which narrowly defined torture and Geneva's protections. (According to Barton Gellman's new book about Cheney, the only technique Yoo rejected on legal grounds was burying a detainee alive.) Still, the executive order leaves the door open to techniques that the United States would not want used against its own soldiers and so is part of the Bush administration detritus that has damaged the United States' moral authority abroad. The administration's record is so tarnished on this score that the next president should declare that he is scrapping this order, so he can start over and come up with his own policy on interrogation and the CIA.
No. 4: Handing the Keys to the Vice President
Executive Order 13292 (PDF)
March 25, 2003
What the order says: In 1995, then-President Bill Clinton issued an executive order that made it easier to declassify documents, and hundreds of millions of pages of information about the White House tumbled forth. In 2003, the Bush administration took another tack, amending Clinton's order to get the vice president into the business of classifying whatever he wants. Executive Order 13292 gives the vice president the same power to classify documents that the president has.
Why it should go: EO 13292 is a twofer: It both expands the scope of secrecy and the powers of the vice presidency. As Byron York argues in the National Review, "Since the beginning of the administration, Dick Cheney has favored measures allowing the executive branch to keep more things secret. And in March 2003, the president gave him the authority to do it." This is reminiscent of Cheney's efforts to prevent the National Archives and Records Administration from enforcing the rules that govern classified information as they pertain to the vice president. Cheney is famous for wanting his office to be a closed box. Executive Order 13292 looks like it was written expressly for him. We hope that the next vice president won't also want to keep secrets to this extent. But the boss should eliminate this worry by revoking this order.
No. 5: Free Rein in Iraq
Executive Order 13303 (PDF)
May 28, 2003
What the order says: Issued two months after the invasion of Iraq, this order offers broad legal protection for U.S. corporations dealing in Iraqi oil. Bush's directive, justified as a means of protecting Iraqi oil profits, nullifies any sort of judicial proceedings relating to either Iraqi petroleum or the newly created Development Fund for Iraq. The executive order also declares a national emergency to deal with the threat to a peaceful reconstruction of Iraq, which Bush has renewed every year since, most recently in May 2008.
Why it should go: This directive is the foundation for all of Bush's subsequent executive orders on Iraq (see No. 6, below), so it's the logical place to begin rolling back abuses of authority relating to the war. Given the many concerns over cronyism and waste by U.S. contractors in Iraq, revoking their blanket legal protection when oil is on the table is justified. Watchdog groups originally feared that the order could be used to prevent people with tort claims from suing corporations working in Iraq. That hasn't come to pass so far—Tom Devine, the legal director at the Government Accountability Project, says he has not seen the order applied in any legal case. Still, given that the United States will probably be in Iraq for at least 16 months after the next president takes office, it's not too late to inject a little accountability into the contracting. As the Government Accountability Project wrote at the time, "The scope of the EO's mandate for lawlessness is limited only by the imagination." The order is also overkill; the U.N. resolution that passed concurrently with it, which was hailed as a major diplomatic victory for the United States and Britain at the time, contains more limited legal immunity for oil-related commerce in Iraq.
No. 6: Going After Troublemakers in Iraq
Executive Order 13438 (PDF)
July 17, 2007
What the order says: This order grants the administration the power to freeze the assets of an abstract but broadly defined group of people who threaten the stability of Iraq. The list of targeted people includes anyone who has propagated (or helped to propagate) violence in Iraq in an effort to destabilize the reconstruction. Most ominously, it also applies to anyone who poses a "significant risk of committing" a future act of violence to that end. The order, which applies to anyone in the United States or in U.S. control abroad, also declares, "Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited." The order appears to acknowledge that it could conflict with constitutional protections but then states that targets of its provisions do not need to be notified ahead of time that their assets will be frozen.
Why it should go: The Fifth Amendment has a few interesting things to say about the seizure of property without due process—namely, you can't do it. While this is far from the first time the Bush administration has trampled constitutional rights in the name of national security, this order, if broadly interpreted, could target war protesters in the United States. Then-White House spokesman Tony Snow said at the time that it was intended to target terrorists and insurgents, but the language of the order is vaguer. This EO drew condemnation from all ideological directions, from Swift-boater Jerome Corsi to the ACLU. One needn't be a civil libertarian to see the danger of the order's loose definitions or wonder why we needed the order in the first place. Bonus: The next month, Bush issued a similar order targeting mischief-makers in Lebanon and their supporters. That one can go, too.
No. 7: Eyes and Ears in the Agencies
Executive Order 13422 (PDF)
Jan. 18, 2007
What the order says: Recent presidents have gone back and forth over how much control the White House should exert over writing federal regulations, particularly in contested areas like environmental policy. Unsurprisingly, Bush came down on the side of strong White House influence. This order mandates the designation of a presidential appointee in each federal agency as "regulatory policy officer," with authority to oversee the rule-making process. This largely revises Bill Clinton's 1993 executive order granting agencies more regulatory independence from the White House (which nullified two of Reagan's executive orders). Defenders contend that it is important for the administration to be able to balance regulatory policy with business and economic concerns.
Why it should go: The Bush administration has shown no qualms about interfering with federal regulations normally left to civil servants, particularly on environmental fronts like ozone limits, as Democrats like Rep. Henry Waxman, the chairman of the Committee on Oversight and Government Reform, have pointed out. Repealing the order would be a step toward scrubbing the agencies of the stench of political tampering. The next president shouldn't mix political appointees with civil servants from the inception of the regulatory process by requiring a company man in each agency to supervise.
No. 8:Letting Religious Groups Call the Hiring Shots
Executive Order 13279 (PDF)
Dec. 12, 2002
What the order says: Adding to the pair of 2001 executive orders that encouraged religious groups to apply for federal money for social services, Bush's December 2002 order made it easier for churches and synagogues to take the money by letting them skirt certain anti-discrimination laws. Because of this order, the faith-based groups can take federal funds while refusing to hire people who aren't of the faith the groups espouse.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. She is also the Truman Capote Fellow at Yale Law School and a contributing writer for the New York Times Magazine. Her new book is Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.
Chris Wilson is a Slate contributor.
Photograph of President George Bush by Jim Watson/AFP/Getty Images.